Appeal
from the Order of the Superior Court entered July 21, 2016 at
Nos. 309 WDA 2015, 310 WDA 2015, 311 WDA 2015, 312 WDA 2015,
309 WDA 2015, 310 WDA 2015, 311 WDA 2015, 312 WDA 2015,
affirming in part and reversing in part the Order of the
Court of Common Pleas of Allegheny County entered February 6,
2015 at Nos. GD-12-018339, GD-12-016165, GD-12-024324,
GD-14-000899, GD-12-018339, GD-12-016165, GD-12-024324,
GD-12-0000899 and remanding.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
JJ.

OPINION

WECHT,
JUSTICE

In
these consolidated cases, we granted allowance of appeal to
determine whether and to what extent a hospital and a health
care staffing agency have a legal duty to prevent a
terminated employee from causing harm to patients at another
health care facility.

Plaintiffs
claim that David Kwiatkowski, a radiology technician formerly
employed at UPMC Presbyterian Hospital ("UPMC"),
who was placed there by staffing agency Maxim Healthcare
Services, Inc. ("Maxim"), engaged in the diversion
and substitution of intravenous fentanyl. Specifically,
Kwiatkowski injected himself with fentanyl from a preloaded
syringe, refilled the syringe with saline or another
substance, and then replaced the now-contaminated syringe
where it could be used by others to inject patients. In doing
so years later at a Kansas hospital, Kwiatkowski allegedly
communicated hepatitis C to Plaintiffs, who were patients at
that hospital.

Pursuant
to federal regulation, UPMC (but not Maxim) indisputably had
a legal obligation to report the diversion of controlled
substances to the United States Department of Justice's
Drug Enforcement Administration ("DEA"). UPMC
failed to do so. The Superior Court determined that
Plaintiffs established that both UPMC and Maxim
(collectively, "Defendants")[1] had a duty to report
Kwiatkowski's misconduct to the DEA and to "law
enforcement, " and that Defendants' failure to do so
could provide a basis for negligence claims. See Walters
v. UPMC Presbyterian Shadyside, 144 A.3d 104 (Pa. Super.
2016). We affirm the Superior Court's ruling with respect
to UPMC (albeit with a modest caveat), and we reverse the
Superior Court's ruling to the extent it imposed the same
duty upon Maxim.

From
March 2008 to May 2008, Kwiatkowski was on staff at UPMC, but
employed by Maxim. On May 7, 2008, a hospital staff member
saw Kwiatkowski walk into an operating room, select a
syringe, place it inside his clothing, and leave. UPMC later
determined that a syringe containing fentanyl, a Schedule II
controlled substance, [3]was missing and had been replaced with
a syringe containing another liquid. UPMC personnel
confronted Kwiatkowski, and found on his person three empty
fentanyl syringes. They then searched his locker, and found a
syringe labeled as morphine.[4]Kwiatkowski's urine
tested positive for fentanyl and opiates. UPMC immediately
barred Kwiatkowski from working at the hospital. However,
UPMC failed to report the diversion to the DEA,
[5]
despite its obligation to do so pursuant to regulations
promulgated under the Comprehensive Controlled Substances Act
of 1970 ("CSA" or "Act").[6]

From
May 2008 to April 2010, Kwiatkowski worked at seven different
hospitals in three states. In May 2010, he was placed by a
staffing agency at Hays Medical Center in Hays, Kansas.
Plaintiffs were patients at Hays Medical Center during
Kwiatkowski's tenure. They were administered medication
through a syringe that Kwiatkowski had used to inject
himself, had refilled with saline, and then had replaced
where it would be reused. Plaintiffs later tested positive
for the same strain of hepatitis C carried by Kwiatkowski.

Kwiatkowski's
ongoing misconduct did not end in Kansas. In 2012, after his
employment at Exeter Hospital in New Hampshire, the New
Hampshire Department of Health announced that more than
thirty patients at that hospital who had been treated in the
department where Kwiatkowski then worked had tested positive
for hepatitis C. Thereafter, many patients whose paths had
crossed Kwiatkowski's at various hospitals were urged to
be tested for hepatitis C. On July 19, 2012, the United
States District Court for the District of New Hampshire
issued an arrest warrant for Kwiatkowski, based upon
violations of 21 U.S.C. § 843(a)(3) ("acquir[ing]
or obtain[ing] possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or
subterfuge") and 18 U.S.C. § 1365(a)(3) (tampering
with any consumer product that affects interstate or foreign
commerce, or its container or label, with reckless disregard
for creating a risk of death or bodily injury to another,
when serious bodily injury resulted). In 2013, Kwiatkowski
pleaded guilty to numerous federal charges, and was sentenced
to thirty-nine years in prison.

In
2012, Plaintiffs commenced this action, asserting claims for
negligence against UPMC and Maxim and negligence per
se against UPMC, as well as related claims for vicarious
liability, punitive damages, and loss of
consortium.[7] UPMC and Maxim filed preliminary
objections in the nature of demurrers. The trial court,
finding that Defendants owed no legal duty to Plaintiffs,
sustained the objections and dismissed Plaintiffs'
claims. The trial court determined that, to impose such a
duty would expose Defendants and others similarly situated to
liability unbounded by geography or time, and that, as a
matter of sound policy, these consequences outweighed the
social benefits of imposing such a duty.

Plaintiffs
appealed the trial court's order to the Superior Court,
challenging only the dismissal of their negligence claims
against both Defendants, effectively abandoning their
negligence per se claim against UPMC. Applying the
multifactorial test set forth in Althaus ex rel. Althaus
v. Cohen, 756 A.2d 1166 (Pa. 2000), the Superior Court
reversed the trial court as to both Defendants. The Superior
Court concluded that Defendants' relationship with
Kwiatkowski, their knowledge of the conduct that led to his
dismissal, their legal obligation to report such diversions,
and the foreseeable risk of grievous, widespread harm
associated with the continuation of such conduct elsewhere,
all weighed in favor of imposing a legal duty to protect
third parties from Kwiatkowski's misconduct. In the
Superior Court's view, Plaintiffs pleaded "facts
that would support imposition of a common[-]law duty of care
upon UPMC and Maxim to report Kwiatkowski's criminal
conduct to the DEA and/or other law enforcement agencies for
prosecution." Walters, 144 A.3d at 121.

II.
Discussion

A.Common-Law Duty

Negligence
is the absence of ordinary care that a reasonably prudent
person would exercise in the same or similar
circumstances." Martin v. Evans, 711 A.2d 458,
462 (Pa. 1998). "While the existence of a duty is a
question of law, whether there has been a neglect of such
duty is generally for the jury." Emerich v. Phila.
Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa.
1998). "[T]he plaintiff has the burden of establishing,
by a preponderance of the evidence, that the defendant
engaged in conduct that deviated from the general standard of
care expected under the circumstances, and that this
deviation proximately caused actual harm."
Martin, 711 A.2d at 462. To establish a prima
facie case of negligence, a plaintiff must plead that
"the defendant owed a duty of care to the plaintiff, the
defendant breached that duty, the breach resulted in injury
to the plaintiff, and the plaintiff suffered an actual loss
or damage." Id. at 461. The only issue before
this Court today is the question of duty.[8]

"The
determination whether to impose affirmative common-law duties
as a predicate to civil liability is a matter of law;
accordingly, our review is plenary." Seebold v.
Prison Health Servs., Inc., 57 A.3d 1232, 1243 (Pa.
2012); see Thierfelder v. Wolfert, 52 A.3d 1251,
1264 (Pa. 2012). We have characterized the duty inquiry as
the "primary" inquiry in negligence. Phillips
v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003). To
assist us in identifying a previously unrecognized duty, we
rely upon five factors: "(1) the relationship between
the parties; (2) the social utility of the actor's
conduct; (3) the nature of the risk imposed and
foreseeability of the harm incurred; (4) the consequences of
imposing a duty upon the actor; and (5) the overall public
interest in the proposed solution." Althaus,
756 A.2d at 1169.[9]

Although
our Althaus analysis applies principles well-rooted
in the common law, we long have recognized that determining
whether to impose a duty of care in novel circumstances can
prove difficult, requiring policy judgments generally
reserved for legislative action. In Althaus, and in
several other cases, we have quoted Dean William
Prosser's influential comments:

These are shifting sands, and no fit foundation. There is a
duty if the court says there is a duty; the law, like the
Constitution, is what we make of it.Duty is only a word with
which we state our conclusion that there is or is not to be
liability; it necessarily begs the essential question. . . .
The word serves a useful purpose in directing attention to
the obligation to be imposed upon the defendant, rather than
the causal sequence of events; beyond that it serves none. In
the decision whether or not there is a duty, many factors
interplay: The hand of history, our ideas of morals and
justice, the convenience of administration of the rule, and
our social ideas as to where the loss should fall. In the end
the court will decide whether there is a duty on the basis of
the mores of the community, "always keeping in mind the
fact that we endeavor to make a rule in each case that will
be practical and in keeping with the general understanding of
mankind[, " Palsgraf v. Long Island R. Co., 162
N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)].

Our
concern for the hazards of judicial policy-making has
prompted our continuing restraint.

[T]he adjudicatory process does not translate readily into
the field of broad-scale policymaking. Seebold, 57
A.3d at 1245 . . . . For this reason, and because the
Legislature possesses superior policymaking tools and
resources and serves as the political branch, we took the
position in Seebold that we would not direct the
substantive common law away from well-established general
norms in the absence of some clear predominance of policy
justifications. See id. (citing Cafazzo v. Cent.
Med. Health Servs., Inc., 668 A.2d 521, 537 (Pa. 1995),
for the proposition that, "[b]efore a change in the law
is made, a court, if it is to act responsibly must be able to
see with reasonable clarity the results of its decision and
to say with reasonable certainty that the change will serve
the best interests of society" (citation omitted)).

Lance v. Wyeth, 85 A.3d 434, 454 (Pa. 2014)
(citations modified; footnote omitted). Mindful of our
long-standing caution, we turn now to review three cases that
preceded Althaus, Althaus itself, and then
several cases that followed. Most of these precedents have
been considered in this case by the lower courts and
addressed in arguments of the parties.

In
DiMarco v. Lynch Homes—Chester County, 583
A.2d 422 (Pa. 1990), this Court considered "whether a
physician owes a duty of care to a third party where the
physician fails to properly advise a patient who has been
exposed to a communicable disease, and the patient, relying
upon the advice, spreads the disease to a third party."
Id. at 423. In that case, a technician stuck herself
with a needle she had used to draw blood from an individual
infected with hepatitis. The physicians she consulted
indicated that, if she remained symptom-free for six weeks,
she could be confident that she had not contracted hepatitis.
Although the physicians did not specifically direct her to
abstain from sexual activity during that period, the
technician did so for eight weeks, during which she remained
asymptomatic. Thereafter, she had sex with the plaintiff.
Both later learned that they were infected, and plaintiff
sued the physicians and others for negligence and related
claims.

Applying
the Restatement (Second) of Torts § 324A
("Liability to Third Person for Negligent Performance of
Undertaking"), we noted that, for the patient to state a
claim, the defendant-physicians must have undertaken "to
render services to another which [they] should recognize as
necessary for the protection of a third person, " a
principle we characterized as "essentially a requirement
of foreseeability." DiMarco, 583 A.2d at 561
(quoting Cantwell v. Allegheny Cty., 483 A.2d 1350,
1353-54 (Pa. 1984)). We underscored the obligation of a
physician to give sound advice, and observed that, the
patient's health already having been compromised,
providing advice regarding contagion serves solely to protect
the health of others. Id. at 562. Accordingly, a
physician's duty extends to those "within the
foreseeable orbit of risk of harm." Id.
(quoting Doyle v. S. Pittsburgh Water Co., 199 A.2d
875, 878 (Pa. 1964)). Thus, a third person within that
"orbit" could state a cause of action against a
physician who neglected that duty. See Troxel v. A.I.
DuPont Institute, 675 A.2d 314, 322-24 (Pa. Super. 1996)
(finding a duty to inform a patient to avoid contact with
pregnant women because the patient's contagious disease
presented potentially lethal health risks to fetuses).

In
Emerich, 720 A.2d 1032, this Court held that a
mental health counselor had a duty to protect a woman from
her ex-boyfriend when he threatened during a counseling
session to harm her. The patient in question, Gad Joseph, was
diagnosed with various disorders and substance abuse
problems, and had a history of threatening his ex-girlfriend,
Teresa Hausler. After Hausler ended their relationship and
moved in with another man, Joseph called his counselor and
suggested that he was going to kill Hausler. The counselor
summoned Joseph for an emergency session, during which Joseph
indicated that Hausler intended to return that day to their
formerly-shared residence to collect her things, and that he
would kill her if she did so. The counselor recommended that
Joseph voluntarily commit himself, but Joseph claimed that he
had regained control. The counselor then permitted Joseph to
leave. Hausler later contacted the counselor, who urged her
not to go to the apartment. Hausler disregarded the
counselor's warning and continued to the residence, where
Joseph shot and killed her.

Based
upon these facts, Emerich (as administrator of Hausler's
estate) filed suit alleging that the counselor had, and
failed to discharge, a duty to take adequate steps to protect
Hausler. The trial court found that no such duty existed in
Pennsylvania, and that, even if such a duty existed, the
counselor satisfied it when he warned Hausler. The Superior
Court affirmed on the same bases.

On
appeal, this Court held "that a mental health care
professional, under certain limited circumstances, owes a
duty to warn a third party of threats of harm against that
third party." Id. at 1036.[11] Acknowledging the
general common-law rule that there is no duty to control the
conduct of a third party to protect another individual from
harm, we noted that an exception exists "where a
defendant stands in some special relationships with either
the person whose conduct needs to be controlled or in a
relationship with the intended victim of the conduct, which
gives to the intended victim a right of protection."
Id. (citing Restatement (Second) of Torts §
315).[12] The Court determined that a majority
of courts in other jurisdictions had concluded that a mental
health counselor has a special relationship with his patient
that imposes an affirmative duty to protect an identified
potential victim from harm. Citing DiMarco, the
court further found "no reason why an analogous duty to
warn should not be recognized when the disease of the patient
is a mental illness that may pose a potentially greater and
more immediate risk of severe harm or death to others."
Id. at 1039. Finally, the Court assessed policies
militating for and against such a duty, and found no benefit
to concealment that would outweigh the benefit of imposing a
duty to warn an intended victim.[13]

In
Witthoeft v. Kiskaddon, 733 A.2d 623 (Pa. 1999), a
case that UPMC contends the Superior Court should have found
controlling, see supra n.9, we considered
ophthalmologist Dr. James Kiskaddon's duty to a cyclist
when his patient, Helen Meyers, fatally struck that cyclist
with her car. Although required to do so by regulation, Dr.
Kiskaddon had failed to notify Meyers and the Pennsylvania
Department of Transportation ("PennDOT") that
Meyers' visual acuity had fallen below the legal
threshold for licensure.

As in
DiMarco, the plaintiff argued, the decedent fell
within the scope of a foreseeable risk of harm as a
consequence of Dr. Kiskaddon's failure to inform Meyers
and PennDOT of Meyers' disability. This Court noted that
DiMarco's focus was upon the communicable nature
of the hepatitis, and indicated that "the threat of the
spread of a communicable disease was paramount in the
court's mind." Id. at 628 (citing
Troxel, 675 A.2d 314). In such a circumstance,
"the physician's duty to provide accurate
information is critical, because information regarding the
risks of cont[r]acting the disease or the dangers of
transmitting the disease are often times not known to the
general public." Id. However, in
Witthoeft, "we [were] faced with poor vision,
certainly not a communicable disorder or a disorder of
imminent threat to health." Id. We held that
this distinction vitiated the public health concerns that
underlay our decision in DiMarco.

Further
distinguishing DiMarco, we rejected the proposition
that the harm in the Witthoeft case was sufficiently
foreseeable to support a duty under the circumstances:

It may be reasonably foreseeable that a patient exposed to an
infectious and communicable disease will injure a third party
unless properly informed to prevent the spread of the
disease. However, we believe that it is an unreasonable
extension of the concepts of duty and foreseeability to
broaden a physician's duty to a patient and hold a
physician liable to the public at large within the factual
scenario of this case. This is especially true where, as
here, [the doctor] did not cause or aggravate a medical
condition that affected the patient's driving . . . .

[Plaintiff's] decedent is simply not a foreseeable victim
that this [C]ourt will recognize. We will not stretch
foreseeability beyond the point of recognition for to do so
will be to make liability endless. To allow liability in this
case would be to make physicians absolutely liable for the
various acts of their patients. This we will not countenance.

In
Althaus, a counselor, based upon an adolescent
patient's allegations that her father had touched her
inappropriately, reported the father to Children and Youth
Services. The patient then was removed from her family's
home and subjected to a medical examination, which produced
no evidence of sexual activity. A clinical psychologist
interviewed the patient, and referred her to a psychiatrist
who specialized in treating sexual abuse victims. During
approximately one year of treatment with that specialist, the
scope of the patient's increasingly lurid, improbable
allegations expanded to include other family members, her
father's coworkers, and strangers. These allegations
precipitated a series of criminal proceedings against the
alleged abusers. The patient's dubious allegations
culminated in a hearing to determine her competency to
testify at those criminal proceedings, where the specialist
ultimately opined that the patient could not distinguish fact
from fantasy. The court then dismissed the criminal charges
against the father. The patient eventually recanted her
allegations, and was reunited with her family.

The
parents sued the specialist for medical malpractice, alleging
that she had negligently treated their daughter, exacerbating
her condition and subjecting them to the negative
consequences associated with being accused of sexual abuse. A
jury entered a verdict in the parents' favor, the
Superior Court affirmed, and the specialist appealed,
contesting her duty to communicate with parents in derogation
of her professional duty of confidentiality to the patient.

After
sounding our cautionary refrain regarding the risks of
instantiating duties that are new to the common law, we
debuted the above-mentioned five-factor rubric, by which we
sought to give shape to considerations that had emerged as
beneficial in prior cases implicating a novel common-law
duty. See Althaus, 756 A.2d at 1169. With regard to
the first factor, the relationship of the parties, this Court
noted that the specialist played no role in the criminal
investigation of the parents and never testified against
them. Moreover, the specialist's "professional
relationship with [the patient did] not create the type of
relationship between [the specialist and the parents] to
support the imposition of a duty of care, " and thus her
"professional obligations and legal duties . . . related
exclusively to her patient." Id. at 1169-70.
Next, acknowledging the need to prevent sexual abuse and the
importance of psychological treatment, we found that social
utility, the focus of the second factor, disfavored imposing
a duty of care to non-patients, especially alleged abusers.
In connection with the third factor, the Court recognized
that substantial and foreseeable harm caused by a false
accusation presented a countervailing concern in favor of a
duty to protect third parties against false accusations, but
noted that the patient's accusation against the parents
had preceded treatment with the specialist, which weighed
against imposing the duty in that case. With regard to the
fourth factor, the consequences of imposing a duty, the Court
emphasized that successful mental health counseling
substantially depends upon trust, fostered by the promise of
confidentiality, which would be compromised by obligating
counselors to protect parties outside the therapeutic
relationship. Thus, that consideration also weighed against
the imposition of a duty. Fifth and finally, the Court found
that the overarching public interest in preserving
therapeutic confidentiality eclipsed any countervailing
considerations. Accordingly, we declined to impose a duty
upon the specialist.

After
Witthoeft and Althaus, one might fairly
conclude that our willingness to contemplate previously
unrecognized duties of care had grown strikingly
narrow.[15] Yet those decisions, like all of the
decisions under review, necessarily hinged upon finegrained
assessments of public policy relative to the precise
circumstances presented. See Phillips, 841 A.2d at
1008-1009 ("No one of [the Althaus] factors is
dispositive. Rather, a duty will be found to exist where the
balance of these factors weighs in favor of placing such a
burden on a defendant."). This was made clear in a
series of cases that followed Althaus, in which we
found that a third-party duty would lie.

In
Sharpe v. St. Luke's Hospital, 821 A.2d 1215
(Pa. 2003), for example, we imposed a duty associated with a
hospital's drug-testing procedures because it was
foreseeable that returning false positives to an employer who
retained the hospital to test its employees would lead to
adverse consequences for the tested employees. We based that
decision upon a combination of common sense and the
hospital's knowledge of why it had been retained
to conduct such testing.

In
Phillips, 841 A.2d 1000, we found it foreseeable
that butane lighters would fall into the hands of children
and that, absent child-safety features, children playing with
lighters would set fires. There, while we recognized the
societal benefit of furnishing a "reliable, convenient
method to create a flame, " we detected no social
utility in producing a lighter without a child safety
feature. Id. at 1009. In considering the nature of
the risk imposed and the foreseeability of harm, we found the
risk of injury and property damage threatened by children
playing with lighters substantial, citing evidence that
children playing with lighters killed or injured nearly one
thousand people per year and spawned costs measured in
hundreds of millions of dollars. Furthermore, it was
foreseeable that children would come into possession of
lighters and that of these children some would start fires.
The quantum of risk and the foreseeability of harm thus
weighed in favor of imposing a duty. Ultimately, the nominal
cost of adopting safety features paled before the strong
public interest in avoiding the "catastrophic effects on
human beings as well as property" caused by
child-started fires, and thus it was in the public interest
to impose a duty.[16]

In
R.W. v. Manzek, 888 A.2d 740 (Pa. 2005), claimants
were the parents of a child who was brutally assaulted while
attempting to sell candy to a stranger in connection with a
school fundraiser. The parties raised numerous claims in
state and federal court, among which was a state negligence
claim against a company that specialized in facilitating
school fundraisers, premised upon that defendant's duty
to take steps to educate the children it assisted regarding
the dangers inherent in fundraising. The plaintiffs
principally relied upon the relationship and
risk/foreseeability factors to establish the duty. The
relationship, they maintained, stemmed from the fact that the
victim had been recruited for the effort, that she had been
enticed to sell to strangers by the promise of various
incentives, and that the defendant benefited directly from
her participation. Furthermore, "the harm that befell
[her] . . . fell within a general, broad class of risks which
the [defendant's] fundraising activities foreseeably
created." Id. at 747. We determined that the
case hinged upon the question of foreseeability, and found
the plaintiffs' averments sufficient to establish that
the defendant "had actual or constructive knowledge of
the dangers inherent in conducting school fundraising
activities as prize[-]winning competitions and in encouraging
elementary school students to approach strangers, " and
failed to warn the students or parents either verbally or in
their written materials. Id. at 751. Thus, we held
that the plaintiffs had set forth a claim upon which relief
could be granted.

In
Thierfelder, and shortly thereafter in
Seebold, we returned to a more stringent account. In
the former case, a physician engaged in a sexual relationship
with a patient whom he was treating for anxiety and
depression. During treatment, the patient called the doctor
her hero, indicated that he had cured her problems, and
shared her belief that she was in love with him, allegedly
exhibiting signs of the "transference phenomenon, "
a process by which a patient displaces feelings she has for
one individual in her life onto the therapist. The plaintiffs
asserted medical malpractice and negligence based upon the
physician's failure to recognize, and/or choice to
exploit, her condition. We found that foreseeability weighed
against imposing such a duty:

[A] general practitioner unfamiliar with transference, or
less familiar with the effects of the treatment, or who is
not deliberately employing the technique in undertaking basic
or situational care of a patient's mental and emotional
difficulties, is less likely to foresee that an apparently
consensual sexual affair with the patient may risk worsening
the patient's psychological problems . . . . The harm and
the risks are real with regard to the patient, but this
Althaus factor focuses on foreseeability respecting
the doctor and whether a concomitant duty may reasonably be
imposed on a general practitioner based solely on the nexus
of some degree of mental or emotional care and the occurrence
of a sexual relationship.

Thierfelder, 52 A.3d at 1276-77.

In
Seebold, we held that a prison health service
provider had no duty to a corrections officer who contracted
a communicable infection from an inmate whom the
provider's agents had treated. In that case, the officer
alleged that Prison Health Services failed to diagnose
inmates (whom she was tasked with strip-searching) with
methicillin-resistant staphylococcus aureus (i.e.,
MRSA). The trial court rejected the plaintiff's argument
that DiMarco established such a duty, but the
Superior Court disagreed.

This
Court agreed with the trial court. We distinguished
DiMarco's imposition of a duty to provide an
infected patient with sound advice regarding infection and
transmission from requiring a health care provider "to
identify, seek out, provide information to, or otherwise take
affirmative steps outside the physician-patient relationship
to protect third-party non-patients." Seebold,
57 A.3d at 1243. Turning to the Althaus factors, we
underscored our "default position that, unless the
justifications for and consequences of judicial
policy[-]making are reasonably clear with the balance of
factors favorably predominating, we will not impose new
affirmative duties." Seebold, 52 A.3d at 1245.

Among other considerations, the courts' reluctance to
impose new affirmative duties reflects that the wider field
of common-law duties is governed appropriately by existing
broad precepts which have been well traveled. In scenarios
involving an actor's affirmative conduct, he is generally
"under a duty to others to exercise the care of a
reasonable man to protect them against an unreasonable risk
of harm to them arising out of the act." Restatement
(Second) of Torts § 302, cmt. a (1965). . . . Generally,
however, there is no duty to protect or rescue someone who is
at risk on account of circumstances the defendant had no role
in creating. See, e.g., Yania v. Bigan, 155 A.2d
343, 346 (Pa. 1959) (citing Restatement (Second) of Torts
§ 314 ["Duty to Act for Protection of Others"]
for the proposition that a mere observer has no duty to
rescue).

Affirmative duties . . . are the primary exception to the
no-duty rule in rescue/protection scenarios where the
defendant did not create the risk resulting in harm to the
plaintiff—these most often arise out of special
relationships of care between the parties.

The
plaintiff relied primarily on the foreseeability of the harm
and the protection of corrections officers, declining to
provide material advocacy regarding the other factors
recognized in our case law and particularly in
Althaus. We emphasized that neither foreseeability
nor any other single consideration of policy is "alone
determinative of the duty question." Id. at
1249. Rather, we must afford such weight to each factor as is
warranted by "the particularized nature of the asserted
duty at hand and context." Id. Ultimately, we
found that deficiencies in the plaintiff's advocacy
substantially impaired our ability to engage in deeper
review. Id. at 1248-50 (favoring the "default
approach" where the plaintiff failed to provide
"policy arguments" of the sort prescribed under
Althaus in favor of focusing on foreseeability and
the putative controlling effect of DiMarco,
Troxel, and the Restatement). In the absence of such
advocacy, we concluded that the policy interest in protecting
corrections officers must yield where the proposed means of
protection presents prison healthcare providers with serious
logistical challenges, threats to physician-patient
confidentiality, and expansive liability, especially when the
risk at issue might be ameliorated by other
means.[17]

B.
UPMC's Reporting Obligation

With
this common-law background in mind, we turn now to the case
at hand. While we employ a conventional Althaus
analysis in assessing the prudence of imposing the duty that
Plaintiffs seek, we begin by reviewing the legal obligation
that Plaintiffs submit as supporting the imposition of that
duty.

Although
Plaintiffs abandoned their negligence per se claims
by declining to appeal the portion of the trial court's
order sustaining Defendants' demurrers as to those
claims, duty in ordinary negligence nonetheless may be
informed by compliance with legal requirements, as it was in
Witthoeft (even if in that case we ultimately
declined to impose a duty).[18] Indeed, inasmuch as we
often cite our preference for legislative judgments regarding
social policy over judicial ones, considering the intentions
reflected in statutes and regulations puts us on a firmer
footing than we enjoyed in a number of the foregoing cases.
In this case, the Superior Court and Plaintiffs have relied
substantially upon the DEA regulations as an important,
though by no means the exclusive, source of the duty they
would have us impose.

Pursuant
to authority vested in the DEA by the Controlled Substances
Act, individuals and entities that are registered to
distribute or dispense controlled substances must notify the
DEA of any significant theft or loss of such substances, as
follows:

The registrant shall notify the Field Division Office of the
[DEA] in his area, in writing, of the theft or significant
loss of any controlled substances within one business day of
discovery of such loss or theft. The registrant shall also
complete, and submit to the Field Division ...

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